Decision by the Administrative Tax Court of the State of São Paulo has determined that Peugeot Citröen do Brasil will not have to pay the ICMS by tax substitution when selling vehicles directly to the end consumer.
According to such decision, when the taxpayer buys the vehicle directly through the carmaker´s website, there is no business transaction between the dealer and the end consumer, for which reason the payment of the ICMS by tax substitution cannot be demanded.
According to the arguments presented in the defense by Peugeot Citröen do Brasil, the payment of the ICMS upon direct sale to the end consumer was made like in the transactions through dealers. In fact, the company eventually paid more because it paid the tax for a commercial chain that did not exist.
Precisely in this respect, it is important to point out that this tax substitution has the scope of reaching future tax events. However, in the case of direct sale to the end consumer, carried out by the manufacturer, no future tax events occur.
In view of the above, the decision seems to be quite logical because the acquirer will not carry out a subsequent business transaction that could justify the prior withholding of the tax.
(Proceeding DRTC-I 53182/2004, 3, AIIM 3024.379-8).